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Defamation and Freedom of Speech$
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Dario Milo

Print publication date: 2008

Print ISBN-13: 9780199204922

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199204922.001.0001

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The Presumption of Falsity

The Presumption of Falsity

Chapter:
(p.156) V The Presumption of Falsity
Source:
Defamation and Freedom of Speech
Author(s):

Dario Milo

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199204922.003.0005

This chapter discusses the presumption of falsity, one of the core principles of the common law of defamation. Its effect is that, upon proof by the claimant that a defamatory statement of fact has been published referring to him, a presumption arises that the statement is false. The defendant bears the legal burden of showing that the statement is substantially true. Part B considers the extent to which courts have dealt with constitutional arguments concerning the presumption. Part C considers the constitutional arguments for and against the presumption of falsity. It argues that there is a sound foundation for the proposition that the claimant in a defamation action involving public speech should bear the burden of proving the falsity of the statements complained of. However, the same argument does not compel a change in the law in regard to private speech; in that context, it is reasonable for the law to require the defendant to prove truth. Part D concludes the analysis.

Keywords:   common law, defamation, defamatory statement, constitutional arguments

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